Judgments of the Supreme Court

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2019 (Shi) 807

Date of the judgment (decision)

2020.02.25

Case Number

2019 (Shi) 807

Reporter

Keishu Vol. 74, No. 2

Title

Decision concerning whether or not an appeal may be filed against a ruling made by a high court to find the withdrawal of an appeal to the court of second instance to be ineffective and to resume and continue the court proceedings

Case name

Case of special appeal to the Supreme Court against the ruling on the effect of the withdrawal of an appeal to the court of second instance

Result

Decision of the Third Petty Bench, dismissed

Court of the Prior Instance

Osaka High Court, Decision of December 17, 2019

Summary of the judgment (decision)

A person who is dissatisfied with a ruling made by a high court to find the withdrawal of an appeal to the court of second instance to be ineffective and to resume and continue the court proceedings may file an objection with that high court within three days.

References

Article 359, Article 422, Article 428, paragraphs (2) and (3), and Article 433, paragraph (1) of the Code of Criminal Procedure



Code of Criminal Procedure

Article 359

A public prosecutor, the accused, or a person as set forth in the provisions of Article 352 may waive or withdraw an appeal.

Article 422

An immediate appeal shall be filed within three days of a ruling.

Article 428, paragraphs (2) and (3)

(2) An objection may be filed against a high court ruling when there are provisions to the effect that an immediate appeal may be filed or when a kokoku-appeal may be filed pursuant to the provisions of Articles 419 and 420.

(3) The provisions concerning a kokoku-appeal shall apply mutatis mutandis to an objection as prescribed in the preceding paragraph. The provisions concerning an immediate appeal shall also apply mutatis mutandis to an objection against a ruling for which there are provisions to the effect that an immediate appeal may be filed.

Article 433, paragraph (1)

(1) An appeal on a ruling or order against which an appeal may not be filed pursuant to this Code may be specially filed with the Supreme Court only when the reason therefor is that there are grounds as prescribed in Article 405.

Main text of the judgment (decision)

The special appeal is dismissed.

Reasons

According to the case records, the following facts are found: in the case in which the accused was charged with homicide, the accused was sentenced to the death penalty by the Osaka District Court on December 19, 2018; against this sentence, the defense counsel in the first instance filed an appeal to the court of second instance on the same day, and the accused filed an appeal to the court of second instance on December 31, 2018, and then, the accused withdrew the appeals on May 18, 2019, but after that, the defense counsel in the second instance submitted a document to the effect that the withdrawal of the appeals by the accused was ineffective and that the proceedings should be continued; after examining the facts of the case, the Osaka High Court made a ruling on December 17, 2019, to find the withdrawal of the appeals by the accused to be ineffective and to resume and continue the court proceedings in the second instance.

If a high court makes a ruling to find the withdrawal of an appeal to the court of second instance, as with the one mentioned above, to be ineffective, and to resume and continue the court proceedings in the second instance, in light of the nature of such ruling, it is appropriate to consider that a person who is dissatisfied with the ruling may file an objection with that high court within three days (see Article 428, paragraphs (2) and (3) and Article 422 of the Code of Criminal Procedure).

Consequently, the ruling in prior instance cannot be regarded as a "ruling against which an appeal may not be filed pursuant to this Code" as referred to in Article 433, paragraph (1) of the Code of Criminal Procedure, and hence, this special appeal is unlawful.

Accordingly, in accordance with Article 434 and Article 426, paragraph (1) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the ruling.

Presiding Judge

Justice MIYAZAKI Yuko

Justice TOKURA Saburo

Justice UGA Katsuya

Justice HAYASHI Michiharu

(This translation is provisional and subject to revision.)